Legal Fiction

"It's a difficult thing to be right all the time." Rummy, 5/9/2006

Saturday, July 31, 2004

DEMOCRATS AT THE CROSSROADS?

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I'm still a little unclear on what exactly I just saw in Boston. Did it seem strange to anyone else that the party who strongly opposed the war in Iraq just had a week-long salute to the military and military service? Did it seem strange that a party whose national leaders rarely invoke religion stressed faith over and over again? Did it seem strange that a party who runs from "values" debates asserted their own "values" again and again? Make no mistake - this was not your ordinary Democratic convention. Something big happened this week - something potentially very big. Or did it? That's the question I want to explore. To me, there are two possible explanations for this week's themes at the Democratic convention. They were either: (1) a disingenuous co-opting of rhetoric that many Dems generally don't believe in; or (2) the opening phase of a fundamental transformation of the American Democratic Party - and one that might just gain them a permanent majority.

First things first. It's well-known that co-opting an opponent's or critic's rhetoric is a great way to defuse the opposition. Thomas Frank (back in the early days of his magazine, The Baffler) wrote extensively about how corporate America co-opted the revolutionary language of the 1960s and 70s, largely reducing its power as a force for change. Some of the articles are captured in the book, Commodify Your Dissent.

Frank's argument is fairly simple. The 1960s and 70s produced a great deal of anti-authority rhetoric about not "conforming," about being authentic, about being original, and about breaking the rules and questioning authority (especially that of corporate America). By the time the 1990s rolled around, corporate America had co-opted this same language, but used it to advertise its own goods. "Being original" essentially became a commodity that you could purchase by eating the revolutionary taco at Taco Bell. You can see similar themes everywhere. Burger King once had the motto "Sometimes You Gotta Change the Rules." Coors' motto is "Be an Original." Car commercials have Hendrix playing in the background. Nike used the Beatles' "Revolution," and so on.

This phenomenon is especially common in politics. Clinton famously said, "The era of big government is over." Bush criticized those in his party who thought America was "sloughing toward Gomorrah." Co-opting and triangulation can be very effective.

It's clear that co-opting was going on this week. The Democrats borrowed heavily from Republican rhetoric surrounding faith, family, values, and the military. Kerry even repeated or alluded to several of Bush/Cheney's lines from 2000 such as "Help is on the way" and "I will restore trust and credibility to the White House." Ryan Lizza has a post up on TNR on this very point (and how Bob Shrum - one of Kerry's advisors and speech-writers - loves this tactic).

The question, though, is whether the Dems were being disingenuous or whether something much larger was happening. The first explanation could very well be true. I honestly don't know how many Dems were watching but thinking to themselves, "I will put up with this chest-thumping until November 2 and that's it." But, if that's not true, then the Democrats may well have just transformed themselves into a larger, much more powerful party by redefining the terms of the debate.

As I've explained several times before, the Dems have been living in a post-Reagan linguistic world. Since Vietnam, they have been susceptible to attacks on both the military/patriotism front, and the so-called "values" front (i.e., social issues). Let me be more precise. Republicans have been winning these debates because they have defined the terms (or the "linguistic arena" in which the debate takes place). Take "values." Republicans are winning on "values," not because they are objectively more moral, but because they have successfully scalded a limited definition (their limited definition) of the word "values" on to the brains of middle-class (largely white) Americans. Expressed more abstractly, their argument is structured like this: "'Values' equals 'X' and nothing other than 'X.' I support X, you oppose X. I therefore have 'values' and you don't." The standard response has been to dismiss religion in politics or to avoid the entire debate over values. But the better response is simply to say "No. You're wrong. Values equals 'Y.'" In other words, values means something different than what you say it means. (I explained much of this in my post "Values 2.0").

The same is true of "patriotism." The GOP says "Patriotism equals X." Rather than rejecting patriotism, Dems should say, "No, patriotism equals Y."

As far as faith and values go, I've made the argument severaltimesbefore that Democratic economic policies and social policies are more consistent with Judeo-Christian teachings than Republican ones. But liberals have been afraid of invoking religion, in part because of the abuse of it by Jerry Falwell (the General has more on the good Reverend), and in part because a large chunk of them don't believe in a force or being for which there is no empirical evidence.

That's fair enough, but it misses something. You don't have to believe in God to support a great many policies that are consistent with Christian teachings - helping the poor, rewarding hard work, applying a presumption of peace, helping global poverty, and so forth. The trick is to find policies upon which a broad coalition of secular humanists and progressive Christians can join forces - just as they did in the early 1960s when fighting for civil rights.

In addition, there is simple political reality. Religous people are an overwhelming majority in this country, and if you run away from religion, you will be eventually find yourself out of power politically. It's just a fact of life in America.

That's why I think this convention could potentially mark the beginnings of a whole new post-Reagan Democratic Party. For the first time in a very long time, the Dems voiced strong support for faith, values, the military, unity, and patriotism. Obama's line was particularly powerful - "We worship an awesome God in the Blue states." I know that many Dems, especially secular ones, may have felt a little uneasy about it. But that's only because their conception of religion is too narrow (and too influenced by the Neanderthal wing of the GOP). Religion is only harmful to progressive values when it is used as the GOP has used it (or part of the GOP, I should say). But that's not the only way it can be used. Religious rhetoric was instrumental in the fight over slavery, and for civil rights. It can become instrumental in the fight for gay marriage and better economic policies. Again, it's not "religion" that's the problem - it's the GOP version of religion. Their version merely takes white southern-evangelical social norms and labels them as "religion and values." But as Edwards said, it doesn't have to be that way.

Same is true of "patriotism." There's nothing inherently wrong with it, it's just been badly abused by jingoistic Republicans. But again, if you redefine patriotism, it can be a powerful narrative to use in support of your policies. For example, is it patriotic to pass massive tax cuts while our troops are at war? Is it patriotic to ignore military and diplomatic experts before sending troops to battle? Is it patriotic to allow Americans who work full-time to be in poverty? Again, the trick is showing that the opponent's conception of patriotism is not the only possible one. Or more precisely, the trick is to offer a more compelling and progressive version of patriotism - an "enlightened nationalism" that respects world institutions because it's in our self-interest to do so.

That's why I think this convention promises to be transformative. As I've explained before, the long-term demographics are in the Dems' favor. But, they have a white-person problem, especially a white middle-class person problem. Now some of that is unavoidable. Supporting civil rights chased a lot of whites away, and I say good riddance to them. But that's not true of all, or perhaps even most of middle and working-class whites. If these latter people felt comfortable with the Dems on issues of national security, patriotism, and values, they would leave the GOP - which would then be reduced to a minority in Falwell's Exurbs and corporate board rooms.

And besides, if you are serious about winning the votes of the blue-collar union and non-union families who are getting literally bent over by Republican economic and environmental policies, then you have to show the same cultural respect and tolerance for their views and attitudes as you would for anyone from a different culture. I mean, let's say you volunteered legal services in an Arabic neighborhood in Detroit. If you did that, I'm sure you would be very respectful of the families' religious views and very respectful towards Islam, even though you didn't believe in it. Yet, these same good-hearted progressives often fail to extend this same basic tolerance to the religious views of Ohio union families. But the same thing is needed - tolerance. We only need to tolerate that which we disagree with - otherwise it wouldn't be tolerance.

Of course, nothing needs to change on a policy front. Separation of church and state is important, as is stem cell research. Wars are still to be avoided unless absolutely necessary, and the military must be called to task when they abuse citizens. But I don't think that specific policies are the problem - the problem is the perceived lack of respect for religious views and patriotism in general. I know I have been guilty of that in the past. But so-called "middle America" needs to hear what it heard this week. It needs to hear people express support for Democratic policies at the same time they hear them say, "We worship an awesome God in the Blue states." That will bring them in. They need to hear opposition to unnecessary wars coming from those who truly love America. Most fundamentally, they need to understand that Democratic policies are not an attack on their most fundamental beliefs. They need to be able to say, "Hey, I don't support abortion, but the Democratic position isn't an attack on my religion - it's merely one policy I disagree with them on. I know this because I've heard a lot of prominent Democrats who value faith."

And one more thing, this isn't just political calculations. Most Democrats are religious. Most Democrats are very patriotic. The African-American and Latino communities - two vital constituencies - are profoundly religious. Yet they vote Democratic.

Through sheer luck and the incompetence of the Bush team, the Democratic Party has stumbled into a very strong position right now (potentially). If it could add just a sliver of the white middle-class that is experiencing such economic difficulties and anxieties, then the infamous 1896 majority would reemerge - but in reverse and with Republicans in the permanent minority. And the way to snatch that sliver is to do exactly what was done this week.

Friday, July 30, 2004

KERRY RISING

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In the aftermath of the Iowa caucuses, I heard a lot about Kerry being a good "closer." He closed well in Iowa. He closed well in 1996 when it looked like Weld was going to beat him. Joe Klein wrote a column a while back in which he quoted an unnamed Kerry aide who had worked with him in six different campaigns and said: "I've been with him through six campaigns, and he always scares you in the beginning . . . but he's always right there in October." I never quite understood why this was so praiseworthy, and made me wonder why he wasn't getting his act together sooner. But after watching tonight's speech and this week's damn-near flawless convention, I'm beginning to understand Kerry's political talents.

He will never be a Kennedy, or a Clinton for that matter. He doesn't have the natural charm. But he does appear to have an uncanny ability to survive and adapt, almost chameleon-like, to the political environment he finds himself in. That may sound like an insult - it's not. All successful elected politicians are, and must be, chameleons ("peace president" anyone?). It's a structural necessity in a majoritarian democracy - especially on the national level. Those who survive by getting 50.1% of the vote must understand which way the political winds are blowing, or else they will cease to exist (politically speaking). It's very much like Darwinism. The American electorate destroys those who stand up for unpopular causes, and rewards those who can adapt. This does not mean all principles must be abandoned (see, e.g., Nixon - who did win two elections though). But it does mean that the themes you stress will vary according to the circumstances. It also means that certain policies must be expressed or articulated in particular ways. And finally, it means that you must fight some battles on another day.

To me, Kerry seems like a very good poker player. He plays a few hands, but folds a lot in the beginning without gambling too much. During this time, he sort of feels out his competition. As he gets a better sense of who he's up against, he gets stronger and stronger, and leaves with everyone's money by the end of the night.

Prior to this week, he has been dodging bullets and avoiding mistakes. With the help of Abu Ghraib (Gar-eff), he dodged the spring onslaught from the Bush war machine. He has spent the spring and summer talking about national security and raising a boatload of money. But most importantly, the campaign has had no major blunders - which is an accomplishment in and of itself.

But now Kerry is no longer playing defense. And this week's convention was brilliant as a matter of political tactics. If you remember nothing else, remember this - the campaign will be decided in Ohio, Pennsylvania, West Virginia, Missouri, and other states with lots of rural people, lots of union workers, and lots of uber-patriotic religious people. This convention - and much of Kerry's and especially Edwards's speech - was directed squarely at these people. I mean, think about it - I just watched a Democratic Party on the verge of collapse in 2002 stay on message for an entire week pounding home the themes of patriotism, family, faith, and unity. I was shocked at how prominently the military and religious themes were emphasized. If you at home didn't particularly care for the simplistic appeals to nationalism, that's the point - this convention wasn't for you. You're probably already voting for Kerry. The West Virginia coal miner with the flag on his porch is not.

But that's the Kerry talent - sizing up his situation, adapting to it, and then striking back hard. I've gotta think that Rove was unprepared for the nature of this attack. The Democrats came out shooting on the GOP's right flank with respect to the military and values. After this week, the GOP is going to have to play defense on a subject they assumed they would never ever have to defend. Trust me, this convention will create anxiety within the White House.

Kerry's speech was also solid. He sounded strong, and he looked presidential. It wasn't Clinton, but Kerry hammered home his military service, his values, God, and all the other themes that Rove assumed belonged to him alone. To me, the speech showed a keen political awareness of what must be done to win.

However . . . there is a question about whether the convention was disingenuous. In other words, how many Starbucks progressives actually liked all the hyper-patriotism and appeals to religion? I think this is an interesting question - and one that I'll examine tomorrow. Just as a preview, I think there are two possibilities: (1) the Dems were merely co-opting hawkish language to win this election, and don't really buy all the rhetoric; or (2) this convention might actually redefine the American "Left" and the Democratic Party. That's for tomorrow.

[Update: Some quick comments on the reaction so far. Matt Yglesias was unimpressed, but he did explain later on that the speech might have been good politically speaking, even though he personally disagreed with it. Drezner makes a similar complaint - they're both upset about the demagoguing of outsourcing, and the lack of specifics about Iraq, Iran, and North Korea.

I've said it once and I'll say it a million more times before November - this election is about winning swing voters in eight or nine states with a lot of rural, blue-collar religious patriotic white voters. Matt concedes as much in his later post, but it's worth stressing. First, demagoguing outsourcing is (unfortunately) political gold. I heard someone say on TV that it's polling through the roof. One might expect that outsourcing would be better understood and less feared by highly educated people like Drezner, but if you're a factory worker in West Virginia, you fear it every single day. I grew up in a small (real small) Kentucky town on the Tennessee border and there are a number of factories in the area. I can personally attest to the fact that the A-Number-1 fear that people in my little town have is that the factory will go abroad - and if it does, these people don't have a PHD in political science, like Drezner does, to fall back on. So I wonder if there's not a little unconscious class bias (or ignorance of the concerns of the working class) going on here. Again, I do believe in free trade, but largely because it helps world poverty. It seems undeniable that outsourcing hurts blue-collar workers - and they are the ones who vote.

Second, as for the complaint about the lack of specifics regarding foreign policy, all I can say is good lord. This is the American electorate we're talking about. They don't know anything about foreign policy ("they hate us for our freedoms"), and addressing specifics won't do any good and will only be used against him. Nixon played it exactly right in 1968 - keep it vague and let the incompetence and dishonesty win the election for you.

Again, I'm not a big fan of this dumbed-down largely meaningless political rhetoric - but it's the nature of the beast.]

Thursday, July 29, 2004

CNN

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Immediately after the speech, I turned to CNN. I kid you not - they were talking about the balloons not coming down from the ceiling. One of them said that the same thing happened to Carter in 1980 and it was seen as a bad omen - the balloons! Then the camera shot up to the ballons, and then I turned the channel with Judy and the rest of them still discussing the balloons. I clicked back about one minute later and Ed Gillispie was already on with the words "Extreme Makeover" behind him. Gotta love that oh-so-librul media. More on the speech momentarily . . .

THE WISDOM OF THE NON-ATTACK

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I've got a lot to say about the Convention, but I'm going to wait until after Kerry's speech to start posting on it. One thing I do want to address quickly is whether the Dems should be attacking Republicans more directly. I just heard Chris Matthews say that the Democrats' failure to attack Bush and the GOP directly will hurt them. Matthews said something to the effect of "If someone is shooting directly at you, don't you need to shoot back at them, rather than shooting up in the air?" Amy Sullivan voices a similar concern:

The failure to name names may not hurt the Kerry/Edwards ticket. I can't help thinking, however, that the near-total absence of references to the Republican Congress during the Convention will hurt candidates further down the ticket. Again, we've heard a lot about unjust and irresponsible policies this week -- but while they haven't been portrayed as victimless crimes, they often sound like perpetrator-less crimes.

I disagree - even assuming for now that they are correct about the shortage of attacks (I'm not so sure - and neither is Josh Marshall - I just think the attacks have been subtle). As for Matthew's metaphor, he is assuming that direct attacks are the only way to "shoot back." In my opinion, the Dem strategy of presenting an optimistic message with strong doses of patriotism, faith, and family is roughly equivalent to resting the barrel between the GOP's eyes and pulling the trigger. Direct attacks represent one particular means - they are not an end, and they are not the only means available to reach that end.

Here's why I think the attacks are not necessary, and even counterproductive. People forget that, in early 2003, this convention promised to become 1968 or 1972 all over again. The party was fractured and paralyzed over Iraq and the cowardice of congressional Democrats in 2002 and 2003. I honestly thought Nader would get 10-15% of the national vote back then. Then Dean suddenly emerged, and WMDs failed to emerge, and the whole thing started to unravel for Bush.

Anyway, direct attacks were needed back then to energize and solidify the demoralized base. They are no longer needed. Thanks to Rove-the-Genius's strategy of "positive polarization" (modeled after Nixon), the Left is completely unified. Kerry's left flank is secure - Nader can't even get on a ballot anywhere largely because the Left has so completely unified around the effort to remove Bush.

Here's the point - any voter who would be persuaded by direct attacks on Bush is already voting for Kerry. Direct attacks gain you nothing. Josh Marshall explained it well:

Among Democrats, the rejection of this president is so total, exists on so many different levels, and is so fused into their understanding of all the major issues facing the country, that it doesn't even need to be explicitly evoked.

I think that's right. The problem, though, is that doesn't get you to 50.1%. It gets you close, but not over the top. And further, Kerry doesn't even need 50.1% of the American people, he needs 50.1% of the vote in battleground states like Ohio, Pennsylvania, West Virginia, and Florida. Direct attacks are not the way to get 50.1% in these particular states. As hard as it is for many progressives to understand, a lot of people don't hate Bush, especially in these battleground states. To win in these states, the Dems have to be trusted on the issues of faith and national security. Bush-bashing, while not without cathartic value, is simply the wrong way to get swing voters in Ohio. These voters are broadly dissatisfied with the incompetence and recklessness, but they don't have a visceral hatred for the President. Many are also deeply religious and patriotic. If an alternative came along - especially one they felt comfortable with on the issues of religion and patriotism - they would leave Bush. And again, because the Left is so unified, Kerry can afford to indulge in the sort of flag-waving and chest-thumping that many Dems wouldn't tolerate under different circumstances.

I'll have much more to say on the broad themes of this convention and why I think they have been so shrewd later this week - and maybe tonight, depending on how Kerry's speech turns out.

He must be nervous - existential moments are rare things, and if you screw them up, you don't get them back.

THE MASTER

For Brutus is an honourable man;
So are they all, all honourable menMark Antony's speech - William Shakespeare, Julius Caesar

[W]e've got to choose for president between two strong men who both love their countries.
Bill Clinton, Speech to the Convention

Also I heard the voice of the Lord, saying, Whom shall I send, and who will go for us? Then said I, Here am I; send me.
Book of Isaiah 6:8

John Kerry came from a privileged background. He could have avoided going too, but instead, he said: Send me. When they sent those swiftboats up the river in Vietnam and they told them their job was to draw hostile fire, to wave the American flag and bate the enemy to come out and fight, John Kerry said: Send me. And then, on my watch, when it was time to heal the wounds of war and normalize relations with Vietnam and to demand an accounting of the POWs and MIAs we lost there, John Kerry said: Send me.
Bill Clinton, Speech to the Convention

Another line is to apply to the other speaker what he has said against yourself.Aristotle, Rhetoric - Book II, 23:6

During the Vietnam War, many young men, including the current president, the vice president and me, could have gone to Vietnam and didn't.
Bill Clinton, Speech to the Convention

And unto one he gave five talents, to another two, and to another one; to every man according to his several ability; and straightway took his journey. . . . And so he that had received five talents came and brought other five talents, saying, Lord, thou deliveredst unto me five talents: behold, I have gained beside them five talents more. His lord said unto him, Well done, thou good and faithful servant.
Book of Matthew, 25:20-21.

But the important thing [about John Edwards] is not what talents he has, but how he has used them. He chose -- he chose to use his talents to improve the lives of people like him who had to work for everything they've got and to help people too often left out and left behind. And that's what he'll do as our vice president.Bill Clinton, Speech to the Convention

Another line of proof is got by considering some modification of the key-word, and arguing that what can or cannot be said of the one, can or cannot be said of the other: e.g. "just" does not always mean "beneficial."Aristotle, Rhetoric - Book II, chpt. 23

Strength and wisdom are not opposing values.
Bill Clinton, Speech to Convention

Another line of argument is to refute our opponent's case by noting any contrasts or contradictions of dates, acts, or words that it anywhere displays. . . . [T]he significance of contrasted ideas is easily felt, especially when they are thus put side by side, and also because it has the effect of a logical argument; it is by putting two opposing conclusions side by side that you prove one of them false.Aristotle, Rhetoric - Book II, chpt. 23; Book III, chpt. 9.

[W]e've got to choose for president between two strong men who both love their countries, but who have very different world views: our nominee, John Kerry, who favors shared responsibility, shared opportunity and more global cooperation; and their president and their party in Congress who favor concentrated wealth and power, leaving people to fend for themselves and more unilateral action.
Bill Clinton, Speech to Convention

SURVIVED

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It's done. Thanks again for all the emails, comments, etc. - I really appreciated all the support. There's a lot to say, and I'll be posting later today some thoughts on the convention after I catch up on the news a bit.

And it remains true that no president who truly took the responsibility of wartime seriously would be approving semi-legal gerry-mandering in Texas, or brutal campaigning in the mid-terms, or a constituional amendment to marginalize an entire minority. But Bush and Rove made that choice; and now they face the consequences.

Yep, Andy took a strong stand against nasty campaign rhetoric before the mid-terms and in the lead-up to the war. His support for the war was always reasoned, and he was always respectful of the opposition. Get the f*** outta here. The amount of credibility that Andrew Sullivan has to criticize Bush for "brutal campaigning" in 2002 is somewhere close to negative infinity. In case you've forgotten, go back and check out Sullivan's vile Left-bashing from September-to-November 2002. There are some truly great quotes.

Monday, July 26, 2004

CLINTON

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Substitute "in" for the "ap" (above), and that's about how I felt after that speech. Seriously though, that's the best speech I've heard in a long, long time. I'm sorry, but he's awesome.

More specifically, he did two very important things with this speech. First, he redefined the terms of the debate - just as Reagan did successfully. For the past four years, the Dems have been fighting a debate defined by Republicans. Clinton threw that out the window and redefined the debate in a way favorable to Dems. Like Rove, he reduced the world into a clear, easy-to-understand choice between two policies. You can choose to spend money to concentrate wealth at the very tip-top. Or, you can choose to spend that money for fire fighters, veterans' benefits, education, the war, and so on. That's the right way to do it - linguistic supremacy can win you an election. He also put a human face on the deficit, which is paid for by the Social Security payroll tax (a regressive tax that hurts wage-earners) and by borrowing from other countries (which gives them leverage over our policies).

Second, he hammered home on national security, terrorism, and values. They simply can't be emphasized enough.

The opinion that the Democrats need to foreswear McGovernism and prove their commitment to moderation is one of the very safest in all of punditry. It is sure to be taken out for a spin more than once during this week's Democratic convention. . . . It is an odd notion that the Democratic Party is about to flicker out and, like Tinker Bell, can be saved only if all the delegates chant, "We do believe in moderation. We do. We do." . . . You would not know from the Democrats' three decades of defensiveness about themselves and the label liberal that the Democratic candidate got more votes than the Republican one in each of the past three presidential elections. Another way of putting this is that the candidate the world labeled a liberal, whether he admitted it or not, got more votes than the candidate who proudly labeled himself a conservative.

Amen. I heard some caller on CSPAN say that the Democrats are showing their true "too-left" colors by letting Jimmy Carter, Bill Clinton, and Al Gore speak. Huh? All of these people received more votes for president than their Republican opponents. Although I guess I would fall into the Clinton "New Democrat" camp on policy grounds, I am pretty sick and tired of watching national Democrats apologize for being liberal and being part of a party that has (in my opinion) won the last three presidential elections. In fact, the reason the GOP is in power at all is because of the malapportioned Senate - which has enormous effects on the Electoral College.

So this brings us to the Republican "majority" in the Senate. Here's how I made the calculations. When states had either two Democrats or two Republicans, I counted 100% of the state's population for one party. When the state had one Republican and one Democrat, I split the population. Here's the result - there are 51 Republican Senators representing roughly 125.3 million people. There are 49 Democratic Senators representing 162.2 million people. Thus, each Republican Senator represents roughly 2.5 million people. Each Democratic Senator represents 3.3 million people.

. . .

[B]ecause the Senate is so malapportioned, this malapportionment is incorporated into the Electoral College. For example, California has 55 points - 53 for its House members, and 2 more for its Senators. Wyoming has 3 points - 1 for its lone House member, and 2 for its Senators. The result - California gets an elector point for every 614,000 people. Wyoming gets an elector point for every 167,000 people. You saw the result in Bush v. Gore. As everyone knows, Gore won the popular vote (by half a million - no small sum), but lost in the Electoral College. Now you can understand why. It's the 2-Senator rule. If the Electoral College were based only on the number of House members (and thus did not include the two points for each Senator), Gore would have won. The actual result was 271 to 266 in favor of Bush. Bush won 30 states (60 Senate points) and Gore won twenty (40 Senate points). If you exclude the Senate points, Gore wins 226 to 211. So, Bush won not because of any popular Republican majority, but because of the malapportioned Electoral College. And the Electoral College is malapportioned because it includes the Senate in its calculations (and in the Senate as well, the Republicans hold a majority only because of malapportionment).

[Update: Ok - I'm officially sick of the press coverage. Everytime I go downstairs to take a break from studying, CNN and MSNBC are parroting the same story line that Kinsley illustrated above. Can Democrats tone it down? Can they present a moderate face? Are they too liberal? Is the national media actually stupid - or are they just so intellectually lazy that they apply exactly zero critical thought to the Fox News version of reality. I mean, isn't it time we stop conceptualizing the entire friggin' political world as existing in an either/or state where everyone falls into only one of two boxes ("liberal" and "conservative") on every single issue. Life is complex - and individuals' political positions are exceedingly complex. Our linguistic labels should reflect that. And to the extent those labels no longer reflect reality, we need new labels. What really bothers me is that the "two boxes" conception is the perceived baseline, and individuals are always judged relative to that non-existent baseline. Some are "moderate" or to the right of the perceived "liberal" or "conservative" baseline (and that equals "good"). Some are "extreme" or "far-left" or "far-right" (and that equals "bad"). But the one holy firmament in the political sky is the two-boxes conception. I will personally send a crisp new $1 dollar bill to the first TV "journalist" who I hear say, "You know, I'm not sure that terms "liberal" and "conservative" are the most appropriate labels for politics in the 21st century."

Last thing - let's assume the parties are arguing about whether the earth is round. If one side says it's flat, and one side says it's round, what does that say about the "moderate" position? MODERATE DOES NOT EQUAL "CORRECT." And that's true for both sides. If abortion actually is the murder of God's children (hypothetical here), then the moderate position is wrong. If the war in Iraq was pointless and for nothing - and has made us and the world less safe - then the moderate position is wrong. Again, sometimes the moderate position is correct. But can we please - please please - get away from this two-box conception where all deviations from the baseline to the center are ipso facto correct, and all deviations to the left or right are ipso facto wrong. I think it's called groupthink. Help us Obe Wan-Ke-blogosphere, you're our only hope.

FROM THE ARCHIVES

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Before I direct you to my prior links (that's the bar exam posting policy this week), I'm going to have to call bullshit on Kos and Atrios - two of my favorite bloggers, and two of my favorite blogs. Here's what they had to say about covering the convention:

Atrios: [G]iven the fact that there will be 15,000 media people there, I find the presence of 35 odd bloggers to be not all that much of a story, at least before the event. . . . I don't really feel like "bloggers going to convention" is a particularly interesting story.

Kos: And really, it's not that big of a deal. It's great that the party has rolled out the red carpet and sponsored blogger events and all, but the fact that a new medium is covering the event is as exciting a development as discovering that next week, radio will also be covering the convention.

Rrrrright. Let me get this straight. These guys are rolling into Boston having raised nearly $800K between them for Democratic candidates in a revolutionary way. They are also the proprietors of two of the most widely-trafficked, most-awesomest blogs on the Internet. Their presence will probably be recorded in history books for all time if blogs and the Internet become as transformative as I think they will (or more precisely, can be). In short, they're going to be complete bad asses in Boston - very hot shit - but it's not a "big deal." Save it guys - live a little. While I admire your modesty, I'm not really buying it. Brag. I would. If I had raised nearly $300K for John Kerry, I'd be all over the place. If Clinton told a joke, I'd be slapping him on the back laughing with drink in hand. If Judy Woodruff interviewed me, she would have to peel me off the camera to get me to leave (again, with drink in hand). In short, enjoy the fruits of your labor guys (with drink in hand).

Anyway, with all the speeches coming up, one thing to keep an eye on is how well the various speakers use rhetoric (in the classical sense). I did a post back in February outlining the forms of classical rhetoric - and illustrating how Edwards was much better than Kerry at it. And Clinton is phenomenal. If you get a second, check it out:

Rhetoric is simply the art of speaking or writing effectively and persuasively. Long ago, Aristotle identified three different types of rhetoric - ethos, logos, and pathos. Each of the three types of rhetoric is meant to persuade the audience, though each type goes about it in a different way. . . .

Saturday, July 24, 2004

STRIPPING JURISDICTION - PART TWO

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Having though a little more about this subject, and after reading Southern Appeal's Plainsman's excellent comments in the last post, I thought I should try to lay out the issues a little more clearly. The more I think about it, the more I realize that the House may not have quite understood the magnitude of the measure it just passed. I mean, this is potentially huge huge stuff - constitutional nuclear war if carried to its logical extremes. And it could come back to bite them, just like Dr. Frankenstein's monster came back to bite him. Anyway, this stuff is exceedingly complicated, so I'll lay it out as clearly as I can for the non-lawyers among us.

One basic lesson of constitutional law is that the judiciary (all federal judges) can only do what is allowed by Article III. Article I controls Congress, and Article II controls the Executive (and the relative order is not by coincidence). Basically, Article III contains a laundry list of nine separate kinds of cases that federal courts (or Article III courts) can hear. Imagine nine separate categories, or boxes. Every single case must fit within one of these nine boxes, or else a federal court can't hear it. For cases that fit in two of these nine different boxes, the Supreme Court has what is called "original jurisdiction" - which means the case can begin in the Supreme Court. More importantly, Congress cannot (as a constitutional matter) prevent the Supreme Court from hearing these cases. For cases in the remaining seven boxes (which is almost every case including challenges to DOMA by anyone other than a state), the Supreme Court has what is called "appellate jurisdiction" - meaning that they can only hear the case on appeal (from either state courts or lower federal courts). Here's the critical point - the Constitution clearly states that Congress may make "exceptions" to what the Court can hear when it's exercising appellate jurisdiction. Thus, in theory, Congress could completely bar the Supreme Court from hearing any case that fits within the other seven boxes.

OK. Now try to bracket all of that and put it aside. Congress also had the power to create lower federal courts if it wanted, and of course it did. The Constitution also seems to allow Congress to eliminate all lower federal courts tomorrow if it chose to do so (but not the Supreme Court). So, under that theory, the general rule is that lower courts can only hear cases that Congress allows them to (original or appellate). There must a statute that grants the courts jurisdiction, or else they can't hear it.

So here's the problem - and it's a big big problem and the House may not have realized the depths of the constitutional swamp that it just stuck its big fat foot into. The problem is that, in theory, Congress could pass a law (again assuming it's in one of the seven "appellate jurisdiction" boxes) and then prevent ANY FEDERAL COURT from hearing a challenge to it. For example, it could prevent the lower courts from hearing it at all (by abolishing jurisdiction), and it could also prevent the Supreme Court from hearing it under its appellate jurisdiction.

So, the precise question that faces us is whether Congress can legally prevent some cases (within the seven boxes) from being heard at all by ANY FEDERAL COURT. You can see why this is such a big problem. In theory, Congress could pass a law abolishing free speech and no federal court could hear a challenge to that law. Or, Congress could ban guns (are you listening Tom DeLay?) and no one could challenge it in federal court. Taken to its logical extreme, Congress and the President could do pretty much whatever they wanted if they could get a bare majority to pass a law and then limit jurisdiction to challenge it. Then, everything (the Bill of Rights, the manners of election) would essentially become "suggestions." Rights without remedies aren't really rights. Under this view, the only recourse would be the state courts (but I'm not sure how far their power would extend - anyway. . . )

So here's the question I posed earlier - are there constitutional limits on Congress's ability to strip jurisdiction, and more importantly, abolish jurisdiction in the lower federal courts? The purely textual reading (in the spirit of the non-pragmatic Bork) would say no. [For the really hard-core Federal Courts people, Akhil Amar has offered a textual reading that makes a big deal of "all" in the first three boxes - but I just don't quite buy it].

In my opinion, if there is any limit on Congress's power to do this, it must be implied from the structure of the overall Constitution. Again, my position could be considered pragmatic, or it could be a implication from the structure of the text - take your pick. The point is that I think courts should read the Constitution to prevent Congress from banning jurisdiction for laws that violate the Constitution. In other words, Congress could limit jurisdiction for challenges to an interpretation of a copyright statute or something that doesn't implicate the Constitution. But Congress simply cannot close the federal courts to constitutional challenges (unless it wanted to abolish the entire lower court judiciary). Think about it - what's the point of the Bill or Rights or anything else, if Congress could simply override it with a majority vote that (1) passes a blatantly unconstitutional law; and then (2) strips jurisdiction to challenge that law? Again, Congress's power to usurp is equal opportunity - it could be used to ban abortion, or to ban guns. In theory, it could be used to abolish elections. Throw enumerated powers out the window too if there's no way to enforce the Constitutional text. In short, it seems that allowing Congress plenary power to do this undermines the entire constitutional structure that has served us well since 1865 (not 1789 - that Constitution failed).

Am I being melodramatic? Perhaps. I'd like to think Congress would never get a majority to ban elections. But abuse is not that far-fetched. Just look at 9/11. What if, 4 days after 9/11, someone proposed a law allowing the President to declare (in his discretion) any American citizen an "enemy combatant" and then stripped jurisdiction for courts to hear challenges to that law. Given how carefully the Patriot Act was parsed, I'd say there would be a pretty good chance that the bill would have passed. Law is most needed for emergencies and in times of high emotion - giving Congress this power would allow them to exploit any emergency.

I guess in the end it comes down to a question of institutional trust - how much do you trust Congress? Can you trust them to be the final arbiters of their own power, or would you rather leave that to the courts? Before you decide, remember who's in charge:

Friday, July 23, 2004

STRIPPING JURISDICTION

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Ok - this is the last one (again - too much coffee - can't sleep). Real quick, I wanted to weigh in on whether Congress could legally strip the federal courts of jurisdiction to hear challenges to the Defense of Marriage Act. This is actually a very interesting - and underdeveloped - area of constitutional law. It's underdeveloped largely because it has been the last refuge of nutcases throughout history. The bill passed by the House can be accessed here.

The source of Congress's power to do this comes from Article III's "Exceptions" clause - Kevin Drum posts the constitutional text here. The question is whether the Constitution puts any limits on this power granted to Congress. There are essentially two possible limits - one internal to Article III, and one external to Article III. The argument relating to the internal limit (i.e., something within the text of Article III that limits Congress's power - such as "shall extend to all cases") is a convoluted nightmare and so I'm skipping it. Akhil Amar has written on this if anyone is interested.

The more interesting question is whether there are external limits. In other words, I suspect that Congress couldn't limit a court's jurisdiction to hear challenges to a statute that said, "Free speech is hereby abolished." The First Amendment (which is external to Article III) probably imposes some limit on Congress's jurisdiction-stripping powers under Article III. It's no different than the limits placed on Congress's other powers under Article I. The specific trumps the general. If this is true, then I don't think the courts would recognize the House's bill (assuming it were law) if they actually did decide that DOMA violated gay couples' privacy rights under the Due Process Clause. To decide if the jurisdiction-stripping was proper, it seems like they would necessarily have to decide the merits of the question.

Another interesting possibility is that DOMA may be unconstitutional because Congress didn't have any authority to pass it in the first place (i.e., no enumerated power such as the Commerce Clause). Again, it's an interesting question - can Congress strip courts of jurisdiction to hear challenges to statutes that it didn't have the authority to pass in the first place? I would think not. If I'm remembering McCardle correctly (the post-Civil War case that involved jurisdiction-stripping), it was distinguishable (not to mention that it was in the aftermath of the war).

Also, if there's one thing that courts don't like, it's being told they don't have power to do something. And if that's true generally, it's 100,000 times more true for the Platonic Guardians we sometimes call the Rehnquist Court.

[Update: Here's a thought experiment - what if Congress passed a law (and the President signed it) saying "Elections in America are hereby abolished. No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of this law." Maybe I'm missing something, but I don't think the Supreme Court's original jurisdiction would kick in. My point is that it seems one could raise some very strong structural arguments about the ability to Congress to cut off challenges in ALL FEDERAL COURTS to unconstitutional laws. Though I suppose state courts could still find this unconstitutional - but that raises a different set of concerns.

Anyway, this may not be a good hypothetical for reasons I don't know. If anyone does know more about this, please let me know or comment below.]

CRUNCH-TIME

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I'm in the homestretch, so this will probably be my last post until Wednesday night, or Thursday night, depending on the extent of my post-test celebration. Thanks to everyone for the comments and emails wishing me luck. I really appreciate it.

However, because there are so many new readers (thanks to Kevin) who have just tuned in this week, I thought it might be appropriate to provide a couple of links each day to some of my past posts that are either relevant to the day's news, or that I think you might enjoy. So, in the days ahead, I'll just provide links to two or three previously-written posts with some brief commentary. I do hope everyone will stick around until regular posting can resume next week.

[Ed. note - To avoid confusion - the following commentary is from tonight, and not from the original post.] I haven't read much of the 9/11 Commission articles, but Drudge has a link up tonight to this WP article. It questions whether labeling our counter-terrorism efforts as a "war on terrorism" is accurate and/or helpful. The article states, "The Sept. 11 commission report offers a broad critique of a central tenet of the Bush administration's foreign policy -- that the attacks have required a 'war on terrorism.' The report argues that the notion of fighting an enemy called "terrorism" is too diffuse and vague to be effective." My post above, relying on Josh Marshall's interview with Biden, makes a similar argument - though from a somewhat different angle. My biggest gripe is with the administration's assumption that nation-states are the central actors in the fight against terrorism. Here's an excerpt:

That’s a very important insight. It’s wonderfully ironic that idiots like Andrew Sullivan demagogue people who characterize anti-terrorism as a law enforcement operation, when that’s exactly what it is. When Sullivan spews bile towards the “law enforcement” people, he’s making the same erroneous assumptions about the centrality of states. For instance, if you see the conflict with terrorism as a problem rooted in bad nation-states, then you must see the conflict as a war – and nations must therefore be invaded. But if you see it as a transnational conspiracy with private funding (much like organized crime), then invasions are actually counterproductive, especially if they enrage and radicalize private sources of wealth and individuals who become willing to use that wealth for terrorism. To classify the conflict with terror (linguistically speaking) as a “war” is simply wrong – and it confuses Americans and makes them less likely to understand the conflict.

Steve Chapman wrote an article in Slate yesterday about states' rights and why conservatives seem to have abandoned the principles of federalism. It's a good article and all, but it misses something - "states' rights" is a barren, meaningless concept. I explained why back in February:

And I think so largely because “states’ rights” is a meaningless concept. There is nothing inherently conservative about supporting states’ rights. There is nothing inherently liberal about it either. And the reason is because “states’ rights” has no conceptual meaning. It is always and necessarily a pretext for some underlying argument. So, every single argument that you will ever hear involving federalism is actually an argument about something else. As a matter of logic, states’ rights adds nothing to the argument - it’s merely window dressing.

Thursday, July 22, 2004

A QUESTION OF VALUES

The U.S. military has spent most of the $65 billion that Congress approved for fighting the wars in Iraq and Afghanistan and is scrambling to find $12.3 billion more from within the Defense Department to finance the wars through the end of the fiscal year, federal investigators said yesterday. . . . Already, the GAO said, the services have deferred the repair of equipment used in Iraq, grounded some Air Force and Navy pilots, canceled training exercises, and delayed facility-restoration projects. The Air Force is straining to cover the cost of body armor for airmen in combat areas, night-vision gear and surveillance equipment, according to the report. The Army, which is overspending its budget by $10.2 billion for operations and maintenance, is asking the Marines and the Air Force to help cover the escalating costs of its logistics contract with Halliburton Co.

From yesterday's Wall Street Journal (via Billmon - who notes that this is not exactly a communist rag):

Upper-income families, who pay the most in taxes . . . reaped the largest gains from the tax cuts President Bush championed . . . "To date, the [recovery's] primary beneficiaries have been upper-income households," concludes Dean Maki, a J.P. Morgan Chase (and former Federal Reserve) economist who has studied the ways that changes in wealth affect spending. In research he sent to clients this month, Mr. Maki said, "Two of the main factors supporting spending over the past year, tax cuts and increases in [stock] wealth, have sharply benefited upper income households relative to others."

[Update: I think these verses capture the feelings I had when I read this story:

You fasten the triggers
For the others to fire
Then you set back and watch
When the death count gets higher
You hide in your mansion
As young people's blood
Flows out of their bodies
And is buried in the mud

Bob Dylan, Masters of War]

[Update 2: As a thank you to all my readers, and because I was getting really annoyed with 1000 word limit on the comments, I just upgraded the Haloscan account. Thus, in a few hours, the comments length will go up to 3000 words - I hope. Thanks all.]

PRACTICE BAR QUESTION - Defamation

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It's late and I've had enough coffee to kill a horse, so indulge me. For all you bar exam takers, here's a practice question on the tort of defamation.

QUESTION:

President George W. Bush said a few weeks ago that Saddam Hussein had a "relationship" with al Qaeda. He explained, "The reason I keep insisting that there was a relationship between Iraq and Saddam and al Qaeda [is] because there was a relationship between Iraq and al Qaeda." The 9-11 Commission subsequently concluded that Saddam and al Qaeda had no "operational relationship." Can Saddam sue President Bush for defamation? Assume your state applies the common law version of defamation and all jurisdictional requirements have been met.

ANSWER:

Because this statement involves a matter of public concern, the First Amendment is implicated. Thus, to win, Saddam would have to establish: (1) a defamatory statement made about him; (2) publication or dissemination of that statement; and (3) injury to his reputation. In addition, because this is a public concern, Saddam would also have to show that (4) the statement was false; and (5) it was made with "malice."

Clearly, the first three requirements have been met. Bush stated that Saddam had a relationship with a murdering terrorist organization. This statement was widely published and injured Saddam's reputation. Indeed, he was even invaded for it!

The last two requirements are more tricky. Whether Bush's statement was "false" depends on how one defines "relationship." If Bush meant "relationship" in the sense of "having relations with," then his statement is clearly false. Richard Clarke, al Qaeda/Iraqi prisoners, and the 9-11 Commission have all stated that no relationship existed. However, if Bush meant "relationship" in the sense of "having no relations at all," then Saddam's case would fail as Bush's statement would fall under the "2 + 2 = 5 exception." But I conclude the statement was false, so I'll proceed to the next and final step.

Saddam must also show that Bush spoke with "malice" - meaning that Bush's statement was either knowingly false or was made with reckless disregard as to its truth of falsity. Clearly, Bush was at least reckless. His so-called "best evidence" was Zarqawi - a man who may not even be a member of al Qaeda, but at the very least was operating in a region outside of Saddam's control. Surely the President of the United States understands the complexities of the Arab world well enough to make these basic distinctions.

I therefore conclude that Saddam would recover on his action for defamation.

Wednesday, July 21, 2004

KFC'S ABU GHRAIB?

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Everyone should read Unlearned Hand's response to the grotesque videos released this week showing the cruel treatment of chickens in a plant in West Virginia (that supplies KFC). I saw the video on the news last night and it made me cringe. The hidden video showed workers slamming live chickens into walls, stomping on them, kicking them across the room - it was horrible.

On an aside, it does show just how powerful the visual medium can be. I mean, I suppose PETA has all sorts of written reports documenting cruelty, but it takes seeing the real thing for it to hit home. Sort of like Abu Ghraib, or Fahrenheit 9/11's depictions of the bombings and woundings in Iraq. Americans are visual people, I suppose.

"VALUES" 2.0

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There’s been a good deal of feuding in the progressive blogosphere lately about “values” and religion. Matt Yglesias and Ayelish McGarvey are currently debating whether Kerry should be more religious. Poor Amy Sullivan was (unfairly) blasted for suggesting that Kerry (and Democrats more generally) should become more comfortable with religion. This is a fascinating question, and I wish I weren’t studying secured interests in mortgages right now and had time to do it justice. But because I don’t have much time, and because “values” will apparently be a big theme next week, I thought I’d just rattle off a couple of thoughts on the subject.

First, with respect to the Yglesias/McGarvey debate, I think they’re both missing something. I think Yglesias is right in that there probably aren’t large groups of voters who will be moved to support Kerry if he starts invoking scripture. But that’s not exactly the point of doing it. From what I can gather, Kerry has completely adopted the strategy laid out in Greenberg’s The Two Americas. Greenberg’s theory is that majorities prefer Democratic policies on a wide range of subjects from economics to the environment. The problem, however, is that voters will not even consider the Democratic candidate’s policies unless they are comfortable with the candidate’s views on national security and “values.” In other words, these are threshold issues. Voters won’t necessarily vote for Kerry because they prefer his religious positions, but if they are sufficiently comfortable that he’s not a raving librul atheist, then they will be open to hearing him out on other issues. And in case you haven’t noticed, Kerry spent much of the summer solidifying his national security credentials, and has now moved on to “values” - which is consistent with the Greenberg playbook. Again, the goal isn’t to win. The goal is to get your foot in the door. It’s sort of like jurisdiction. A court will only hear your case if certain threshold jurisdictional requirements are met.

Point # 2. Getting away from pure pragmatics, I think advocating “values” is important for another reason. I’ve explained before that the Left’s problem is largely one of narrative. We have good policies, but I believe that we are fighting for those policies within a post-Reagan linguistic world. In other words, Reagan set the terms of the debate under which we are now operating (I explained it all here). If we are serious about building a new progressive majority coalition, we need new words, new linguistic frames, and new narratives. “Values” is a perfect example of how we might go about doing this. More specifically, we must seize the word, redefine it, and use it as a offensive weapon. Let me give you an example of what I mean. This is from a post in May where I urged the Left to abandon “deconstruction” and start constructing:

In [Madhavi Sunder’s] excellent 2003 Yale Law Journal article entitled “Piercing the Veil,” she challenges Islamic women to battle for rights within the framework of Islam. In other words, she doesn’t argue that women should abandon Islam in Middle Eastern countries. Instead, women should fight to show that the current version of Islam, as interpreted by the ruling men, is not the only possible interpretation of the Koran. Islam, properly understood, does not support discrimination. She is constructing, not deconstructing. Islam, as practiced, is the obstacle, so she’s offering a new, more compelling Islam to take its place. The benefit is that women can use the religious narrative to their advantage, rather than being seen as subversive.

Amen – that’s a roadmap for victory. “ Values” has been used as a means to oppose progressive policies. The Left has responded by demonizing religion or rejecting the rhetoric of values altogether. A better approach is to construct, rather than to deconstruct, a new concept of values. If “values” is the obstacle, redefine it. Offer a new version – Values 2.0, if you will. Tell the world what your values are, rather than arguing within the definition of "values" created by Reagan (or perhaps Goldwater and Wallace).

For example, say things like this: The new values rewards work – it doesn’t repeal the Paris Hilton tax (i.e., the “death” tax). The new values is about freeing people from the excesses of the amoral Darwinian free market. The new values is about helping working people afford health care – and freeing them from the fear of injury or disease. The new values is about funding education when you promise to do so. The new values applies a presumption of peace that can only be overcome by strict necessity. The new values recognizes that fighting terrorism and genocide (even with force) is necessary for the greater good of humanity. The new values is about funding global efforts to prevent AIDS, poverty, and hunger. The new values recognizes that global trade lifts more people from poverty than anything else has in world history. The new values doesn’t gay-bash. The new values protects the environment – call it “God’s creation” if you prefer. The new values is concerned with American poverty, and actually mentions it from time to time. The new values recognizes a new American patriotism and a new national service program.

And whatever else you can think of.

The thing about all the policies listed above is that they can be supported by atheists and religious people. Everyone of these policies is completely consistent with principles of Christianity - and secular humanism. And that should be the goal – to create a platform that will give rise to a secular-religious coalition that can work together to achieve certain goals, regardless of the motives for doing so. Again – construct, stop deconstructing. Transcend the post-Reagan linguistic world.

[Note: Because I went to school with some of his immediate family members, I will not be discussing anything about Sandy Berger - assuming it doesn't dramatically escalate.]

Tuesday, July 20, 2004

THE PEACE PRESIDENT

Nobody wants to be the war president. I want to be the peace president. . . . For a while we were marching to war. Now we're marching to peace. . . . America is a safer place. Four more years and America will be safe and the world will be more peaceful.

We believe that peace is at hand. We believe that an agreement is within sight, based on the May 8 proposals of the President and some adaptations of our January 25 proposal, which is just to all parties. . . . We believe, incidentally, what remains to be done can be settled in one more negotiating session with the North Vietnamese negotiators, lasting, I would think, no more than three or four days, so we are not talking of a delay of a very long period of time.

[Update: I thought I would add this too:

"You are a slow learner, Winston," said O'Brien gently.

"How can I help it?" he blubbered. "How can I help seeing what is in front of my eyes? Two and two are four."

"Sometimes, Winston. Sometimes they are five. Sometimes they are three. Sometimes they are all of them at once. You must try harder. It is not easy to become sane."

BUSH AS BIZARRO NAPOLEON

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For good or bad, the world will remember George W. Bush. He is one of those rare figures who has changed the course of world history through his will - a Hegelian hero of sorts. In Hegelian lingo, Bush is a "world-historical" individual. It's kind of amazing when you step back and think about it. A man whose only real accomplishment was that he was born well has exerted his will upon the world and has forever changed History, especially in the Middle East.

Back in January, in one of my earliest posts, I compared Bush to another world-historical figure - Napoleon Bonaparte. Back then, things seemed more hopeful. It wasn't clear then that Afghanistan and Iraq were unraveling. Constitutions were being written. The Shiites were clamoring for democracy. As much as I opposed the war in Iraq, I briefly entertained the now-naive hope that perhaps the Middle East would become more democratic. Boy, I wish I could take that post back. But let me explain my thinking.

Napoleon was arguably the most influential individual of the 19th Century. Yes, he was a dictator, but he was incredibly important in spreading Western liberalism and rationalism. Liberal reform followed his armies, and he laid the foundations for the liberal legal system that exists in Europe today. As a result of his conquests, nations modernized and embraced more rational forms of government, more in the mold of the new modernist American and French governments.

For a brief moment, I wondered if Bush was capable of doing the same. For a while, it looked like the American military would sweep through the pre-modern Middle East and bring Western ideas along with it. Democracies would replace dictatorships. Liberalism would replace theocracies, and so on.

Dear Lord, was I wrong. Please understand - I never really imagined this would happen. But I do try to be optimistic, and I was really hoping my pessimism was misplaced. It wasn't. The gross incompetence of the past two years will be rippling throughout the Middle East for generations to come. But that brings me to my point - if Bush can't be Napoleon, perhaps he will be remembered as the anti-Napoleon. Or the Bizarro Napoleon. Unlike Napoleon, whose armies left liberal reform behind, Bush's efforts have actually undermined democratic reform in the region. He may well be creating a more staunchly anti-liberal (in the classical sense of "liberal") Middle East.

Just take a look around. First, the hard-liners in Iran are more firmly in charge than they have been in quite some time. And as I noted last month, Iran (you know, the country with nuclear ambitions and al-Qaeda ties) has been the big winner in the region. Afghanistan is lawless, and is run mostly by warlords. Who knows what will happen in Iraq? Right now, it's very possible that we might end up with a Shiite theocracy, a re-Baathified Allawi dictatorship, or de facto partition with the "Kurdish Question" undermining stability in the region. Pakistan is a bullet away from chaos - with a few nuclear weapons thrown in. Foreign militants in Iraq are returning to Saudi Arabia, where they will certainly try to take down the House of Saud (that's one of those contests where you wish both sides could lose - sort of like a Duke-North Carolina basketball game). Matt Yglesias had an excellent article a while back on how the Bush administration has done very little for democracy-promotion even outside the Middle East:

In fact, Bush has pursued a set of policies that have left the world substantially less free than it was before he took office. Some progress has been made in Iraq and Afghanistan. But much larger countries like Russia, China, and Indonesia have moved backward, while the overall impact of the wars in Iraq and against al-Qaeda has been a wide-ranging set of clampdowns across the Middle East and in the former Soviet Socialist Republics of Central Asia to which the administration has largely turned a blind eye -- except when it actively abetted them.

So, no, Americans are not safer, Mr. Bush. They face the threat of substantial narco-terrorism from Afghanistan. Iraq is a security nightmare that could well blow back on the American homeland. Pakistan remains a military dictatorship with a host of militant jihadi movements that had been fomented by the hardline Pakistani military intelligence. Saudi Arabia is witnessing increased al-Qaeda activity and attacks on Westerners. And the Israeli-Palestine dispute is being left to fester and poison the world.

Let's hope that Matt, Juan, and I are all wrong. But I fear we're not. You know, I've never quite understood the argument that "something had to be done to shake up the status quo in the Middle East." Did it? I mean, the status quo was clearly terrible, but I'm not sure that shaking it up is a good idea unless shaking it up would make it better. That argument assumes that things can't get worse. I fear they can. Just ask Bizarro Napoleon:

Monday, July 19, 2004

WHAT'S UP WITH HERMAN CAIN?

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As I mentioned yesterday, something strange is brewin’ in the Republican primary in Georgia for Zell Miller’s U.S. Senate seat – Herman Cain, a black ultra-conservative Georgia Republican is gaining ground on Johnny Isakson, the favorite. Feddie at Southern Appeal is your man for all things Cain (though I suspect many of you won’t agree with his politics). You can also read this WP article for some background. This race fascinates me for several reasons. Specifically, though, I want to focus on two dimensions of the Cain candidacy – (1) the obvious race-related issues; and (2) the substance of some of his positions. With respect to the latter, Cain’s positions clearly illustrate the contradiction that is all-too-common within the current Republican coalition of Wall Street libertarians and working-class social conservatives. But first things first.

With respect to race, I think the most obvious (and most knee-jerk) response would be to condemn Cain for joining the Republican Party. After all, the post-Goldwater Republican Party has a long history of demagoguing race to win elections in the South. From Goldwater to Nixon to Reagan to Bush I to Gingrich, the party’s leaders have all used race to help cement the coalition of business and white working-class voters. [I would throw in George Wallace too, who in many ways was more influential than Goldwater to the post-1964 Republican Party.] In the absence of race, one would expect that poor and working-class whites would join poor and working-class African-Americans – both of whom share the same economic self-interest. But race has long been used to keep this coalition from forming (just as homosexuality is being used today). And though the South is certainly getting better on this front, race has never really gone away. Just like the old Civil War veteran Henry Sutpen in Faulkner’s Absolom! Absolom! hidden away in the attic, race may be out of sight, but it continues to haunt the region. As I explained here, the Confederate flag played a prominent role in the most recent governor’s races in South Carolina, Mississippi, and Georgia.

But that said, I think it’s wrong (and condescending) to condemn Cain for joining the Republican Party only because he’s black. In fact, in what must qualify as Irony-of-the-Century, Cain’s candidacy could be seen as a shining example of the success of the civil rights movement. The fact that Cain was allowed to become a millionaire and to, oh say, vote is the culmination of a century-long effort for civil rights by brave individuals and direct intervention by the federal government (most notably the Civil Rights Act and Voting Rights Act of 1964 and 1965). But let me back up and provide a little more background.

The struggle for civil rights is changing. Perhaps in no other area is the vocabulary we use less helpful in describing the phenomena around us. We need new words. For example, as I explained here, I think that the word "racism" is becoming counter-productive. For one, once it starts flying around, debate screeches to a halt and emotions flare. For another, I think that the problems confronting the African-American community are no longer best described as "racist." There’s plenty of racism – don’t get me wrong – but there aren’t people seriously advocating for segregation or a denial of voting rights anymore. And that wasn’t true at all forty years ago. The problems the black community face today are what I have called "post-racism." In other words, the racism of the past created a de facto segregated world (education, communities, social groups, etc.) that has made us (in 2004) unaware of the perspectives and experiences of other races. The problem is that white politicians who have lived their lives without any contact with the black community cannot empathize with the needs of that community. For example, they have no idea what cuts to public education will mean to schools in poor black neighborhoods. They have no grasp of the harshness of our drug laws and prison system. They feel no sense of urgency in passing urban revitalization projects. Thus, when they act (or fail to act) in a way that hurts the black community, they’re not acting with racist motives so much as they are ignorant of the effects because they have lived their entire lives in a segregated world.

I’ve said all this before. What’s interesting about Cain, though, is that something similar to "post-racism" (I’m welcome to other words for this phenomenon) may be creeping into the consciousness of upper-class blacks. For example, Atlanta is in many ways experiencing a black Renaissance. The black population has grown significantly over the past decade and Atlanta hosts a thriving upper-class, professional black community. It thus makes complete sense why a candidate like Cain would emerge from Georgia (which is the most well-to-do of all Southern states – at least based on median household income).

So here’s my point. If the modern civil-rights movement is largely directed toward economics or addressing problems rooted in poverty, it makes sense that as well-to-do blacks become further and further removed from poverty, they will feel less of an urgency to do anything about it. In other words, they may become less self-consciously "black," and more self-consciously "upper-class." Take Cain, for example. He is now a millionaire. As such, he probably lives in a fancy neighborhood free from crime. He no longer needs any sort of government benefit. His children are economically free to abandon the public school system. He no longer needs affirmative action because his children will have all the benefits that money can and does buy. And so on. Thus, it’s rational for him to vote Republican – at least economically. The burden of taxes are now more real to him than crime, drugs, poverty, and other factors that afflict many black communities. So, as far as race goes, Cain’s candidacy has some good in that it shows economic progress. But still, I would have a hard time supporting the Georgia Republican Party if I were black. Anyway, on to the substance of his platform . . .

Cain’s challenge will be to get the votes of rural (non-Atlanta) white voters who are, to put it mildly, disinclined to vote for an African-American. To attract these voters, Cain has been running to Isakson’s right on social issues, especially on abortion. Isakson has been blasted for opposing abortion – yes, I’m not making this up – in cases of rape and incest. Cain would prefer that women who are raped be forced to have a child. If that doesn’t tell you where the center of gravity is within the Georgia Republican Party, nothing will.

But even beyond abortion, the other issue that absolutely stuns me is Cain’s position that the income tax should be abolished and replaced with a sales tax. This is insane. What’s even more insane is that working-class Georgians would probably support it. This is the contradiction that I referenced earlier – working-class Republicans continue to support policies that are obviously counter to their economic self-interest. Part of the problem is that basic economics is not taught in schools. If it were, people would know that the sales tax is a regressive tax – meaning that it becomes more expensive the less money you make. The income tax, by contrast, is progressive – meaning that it becomes more expensive the more money you make. For example, a sales tax on a Big Mac is the same whether you make $10,000/year or $10 million/year. Thus, the less money you make, the larger that tax becomes (in terms of percentage of income). The fact that working-class people aren’t pelting politicians with eggs for even proposing this is beyond me.

Cain's advocacy for a national sales tax provides support for what Thomas Frank has said – the working classes are getting duped. As I explained here, even if these people assign more value to cultural issues, they should still oppose economic measures like these that shift the tax burden from those most able to bear it to those who are least able to bear it. Just as John Edwards said, a sales tax shifts the tax burden from "wealth to work."

This post is getting too long, but I’ll leave you with some fascinating statistics that provide some support for Frank’s thesis. Below are the state rankings by median household income from the Census Bureau for the 10 poorest states. "Median" simply means that 50% of households make more than this, and 50% make less. Using the average income (which Bush used to measure his tax cut) is highly misleading. For example, Paris Hilton and I have an average inheritance of $250 million. Anyway, the Census Bureau ranked the states by median household income. I’ve added how those states voted in the 2000 election. The number #50 means it’s the poorest state, #49 the second-poorest, and so on. [If anyone knows why median household income is an objectionable metric, please let me know.]

[Update: Matt Yglesias has a post that challenges the notion that the Dems have a working-class problem (or as bad a problem as everyone thinks). Instead, he says the Dems have a white-person problem, and especially a white-male problem:

If you look at the 2000 exit polls or any general election poll today you'll see that people with low incomes support the Democrats more than do people with middling incomes who, in turn, are more supportive than people with high incomes. . . . Another large class of poor people consists of single working white women who, again, support the Democrats.

He's correct about the white-person problem, but I'm not sure I buy the rest of his argument altogether (partly because of the state rankings above). I mean, there are still a lot more whites than any other group, so one could argue that a white-person problem is ipso facto a working-class problem. To me, the relevant question is not so much whether low-income Americans support the Dems, but whether too many of them support the GOP (assuming voting for GOP economics is irrational for them). It's true that the working classes include a lot of non-whites, but there are far more low-income whites voting for the GOP than economic rationality would dictate. Also, I'm not sure which numbers he's using, but at least a couple of the sources I've seen slightly contradict his numbers with respect to women and low-income whites more generally.

First, there's Greenberg's The Two Americas, which gathered detailed information from November '01 through May '03. Here's how he broke it down (some of the groups overlap):

White working women (including nonmarried/non-college) with family incomes under $30K -- 50(D); 42(R)

White married women without a college degree -- 53(R); 40(D)

White women over 50 without a college degree - 47(D); 45(R).

Also, there's last summer's "Stop Dean" poll from the DLC. Here's how it broke down party preferences among whites (through congressional horserace numbers):

Sunday, July 18, 2004

BAR EXAM BLUES

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I was too exhausted from studying to post anything tonight, but I plan on posting something on Herman Cain tomorrow. Cain is competing in the Georgia Republican primary - the winner of which will likely replace Zell Miller. Oh yeah - he's black. As this WP article explains, he's a millionaire and he's running to the right of the current favorite Johnny Isakson. Feddie of Southern Appeal loves him (though I'm curious - what is Cain's position on the Confederate flag? I Googled and searched Lexis briefly, but couldn't find anything).

Anyway, I've got lots to say about his candidacy - both about his positions and the racial dimensions of his candidacy (and how relevant they should be in 2004, etc.). It's especially interesting given that the Confederate flag issue played a significant role in the defeat of ex-Governor Roy Barnes (D) in 2002. But like I said - I don't have the energy tonight. More tomorrow.

Also - a belated thanks to Kevin Drum for the very kind words over at Washington Monthly. Kevin often goes out of his way to direct attention to lesser-known blogs - and it's much appreciated by us little guys.

THE CONSTITUTION AND JONATHAN CHAIT

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(Via Andrew Sullivan) Jonathan Chait proves once again why he may be my favorite journalist. You really should read everything the man writes. Anyway, his latest TNR article lays out a rather damning case against Bush - and one that is largely independent of one's political views (i.e., conservative vs. progressive). The most fundamental problem with the Bush administration (and the GOP leadership - especially in the House) is the process by which they govern. I made this point in a post in April arguing that the Iraq War was also a failure of process - or, a failure to set up an adversarial information-producing system that would lead to informed decisions (to illustrate this point, I described several "information-producing" provisions of the Constitution that help judges come to sound decisions). Anyway, Chait does a much better job explaining this most fundamental of problems:

Bush and his allies have been described as partisan or bare-knuckled, but the problem is more fundamental than that. They have routinely violated norms of political conduct, smothered information necessary for informed public debate, and illegitimately exploited government power to perpetuate their rule. These habits are not just mean and nasty. They're undemocratic. . . . [Thus, this is] the most frightening lesson of the Bush administration: The institutional restraints on an anti-democratic presidency are weaker than we believed.

A-friggin'-men. I would have added the assault on science and stem cell research too, but Chait lands plenty of punches. Anyway, the question I want to pose is why Congress is refusing to do anything about it. Why are they all silent? I refuse to believe that the entire GOP congressional delegation is as undemocratic as the Bush team. In fact, I bet many House Republicans would silently cheer if Tom DeLay finds his way into a Texas prison. But still, they remain silent.

I think the problem is far more fundamental than a mere unwillingness to stop being a "team player." The problem is structural - the problem is that national centralized political parties are undermining the structural protections of our Constitution. More precisely, parties are undermining the structural independence of individual Congresspersons - and few things are more important than that structural independence. But let's back up.

I wrote about this back in January, but it's appropriate to revisit it today. First, you need to understand some of the fundamental principles of the Constitution. The true genius of the Constitution was its structural protections - i.e., separation of powers, checks and balances, etc. For example, House members were intended to be beholden to the interests of their district's constituents and to no one else. The President - or anyone else - could not bully a House member because it was the House member's constituents who controlled his or her fate. The same is true of the Senate. Senators were intended to be responsive to the needs of the voters in their state and to no one else. Or more precisely, the Senators were free to ignore others outside the state because those people had no influence over their re-election. In short, the Constitution intended to create a lot of structural freedom for individual members of Congress.

Political parties undermine these freedoms in an important way. For example, if the President and a Senator belong to the same party, then the inherent (and intended) tension between them is reduced. Conversely, if they belong to different parties, there is more tension than there otherwise should be.

But it gets worse. In the age of national centralized parties, the problem is even more troubling. Given the costs of modern campaigns, individual House members are completely dependent upon campaign cash from the national leadership. They also depend on high-level campaign visits from people like Bush. Finally, the national leadership also determines committee placement (and that's an important "stick"). In short, in the modern House, Congresspersons must also be responsive to their party's leadership - even if it forces them to do something (like tolerate the Medicare Rx "vote") they wouldn't otherwise do.

That's why the Republican Congress remains silent in the face of these abuses. They're literally dependent on the national leadership. If they denounce Tom DeLay, it will cost them cash, campaign help, and valuable committee placements.

That's also why the Republicans most willing to break with the Bush administration are veteran Senators like McCain, Hagel, Warner, and Lugar. These individuals are structurally free. They are popular within their state, and don't rely as heavily on the RNC for cash. They are also more senior, so Frist-the-Hack can't really threaten them by removing them from committees. In general, the Senate is far more free - again, in a structural sense - than the House. And it shows. More on this later.